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Chapter Nineteen

               The Courts of Law

Summary of chapter. This chapter describes Ireland's legal system as it had evolved in Ireland since the Middle Ages. Like many other venerable and hoary institutions it badly needed a systematic reform, but this did not occur until the end of the century.

(i) The Law

(ii) The Royal Courts in Dublin

(iii) The Ecclesiastical and Admiralty Courts

(iv) County Courts: Courts of Commission and Assize

(v) County Courts: Mayor’s and Sheriff's Courts

(vi) The Other Courts

(vii) The Magistracy

(viii) Personnel of the Courts

(ix) Procedures of the Courts


(i) The Law 

            Since the reign of James I, by statutes of the years 1605, 1606 and 1609, the Common Law of England became the only law in the courts of Ireland except in the Church and Admiralty courts. The statutes of James abolished the last remnants of the earlier (so-called Brehon) law that had survived till that time. Henceforth all the king's subjects in Ireland were to be judged according to the same laws. 

            The Common Law of England was based on the decisions of the king's judges in the royal courts in Westminster, and gradually these judgements were accepted in all the courts in England and Wales, and in parts of Ireland. Eventually they were imposed in all the courts in England, Wales, and Ireland, with the exceptions noted above. Common Law is defined as 'The unwritten law of England, administered in the king's courts, which purports to be derived from ancient and universal usage, and is embodied in the older commentaries and the reports of adjudged cases’ (OED). The term is also used to describe the law administered in the ordinary courts as opposed to the equity, ecclesiastical, or admiralty courts. In this latter sense it includes statute law. 

            Judges, especially those in the equity courts of Chancery and Exchequer, were allowed considerable latitude in interpreting the law, and fitting it to changed circumstances, and so it never became archaic or fossilised. 

            Though judges in the Irish courts followed Common Law in the first sense, with regard to statute law (until 1800) they considered themselves bound only by statutes of the Irish Parliament. Despite claims made by the British Parliament to pass laws for Ireland its statutes were not accepted in Irish courts. The Irish Parliament however generally followed English trends in legislation, though the laws tended to be fewer and simpler. Unlike in Scotland Irish lawyers evolved no distinctive theory of jurisprudence. Curiously, no theory of obsolescence was ever evolved, so that even the most archaic statute might be cited. O’Connell frequently cited statutes from the penal laws that the Government could or might recall, even though no Government in the nineteenth century had any intention of recalling them. Commercial law by the beginning of the nineteenth century was poorly developed, Irish MP's having largely represented the agricultural interest and so were hostile to capitalist commercial development. Even after 1800, because of this different legislative background and history of interpretation in the courts separate statutes often had to be passed for England and Wales, Scotland, and Ireland. [Top] 

(ii) The Royal Courts in Dublin 

            There were four major courts in Dublin where the king's justices regularly sat, and to which any case in Ireland could be called for their judgement. There were two Common Law courts, those of the King's  (Queen's) Bench and Common Pleas, and two equity courts, those of Chancery and Exchequer. The first was presided over by the Lord Chief Justice of the King's Bench, usually called the Lord Chief Justice. This was the highest purely judicial office, for the Lord Chancellorship was also a political office. The Lord Chief Justice of the King's Bench and the Lord Chief Justice of Common Pleas were assisted by puisne or lower judges. The judges in the Exchequer Court were called barons, and the Chief Baron of the Exchequer was assisted by Barons of the Exchequer. The Lord Chancellor was assisted by the Master of the Rolls who had a separate court, and by the Masters in Chancery. 

            Originally, the Chancellor's office, the Chancery had a secretarial function, with two sub-offices, the Rolls and the Hanaper. (The Hanaper Office has been described under 'Government'.) The Lord Chancellor was also called on to adjudicate in cases where the law did not apply, which he did sitting in the Court of Chancery.  In Ireland the Lord Chancellor was, and always had been, subordinate to the Lord Lieutenant. The Irish Court of Chancery dated from the reign of Edward I.  

            Despite the satirical image painted of it by Charles Dickens Chancery was an important court. It did not deal with, and refused to deal with, cases for which there was a remedy in Common Law.  It dealt particularly with matters of property for which there was no clear title, the affairs of lunatics and minors, and the guardianship of orphans.  From the Chancellorship of Lord Lifford 1768-90 the verdicts of the Irish Lord Chancellors were recorded.  

            Most of the routine work in this Court was carried out by barristers specialising in equity cases, who were called Masters in Chancery. In the early years of the century these masterships, like commissions in the army, were purchased from retiring Masters. 

            The senior Master traditionally had custody of the record rolls of the court, and was given the title of Master of the Rolls. He held a subordinate court of his own, the Rolls Court, as deputy of the Lord Chancellor, and he dealt with such matters as were specified in his commission of appointment. In the eighteenth century this office was a sinecure. In 1801, the Rolls Court was re-established. Appeals from the Master of the Rolls could be made to the Lord Chancellor, but he almost invariably supported the decisions of his subordinate. The Master of the Rolls had precedence after the Lord Chief Justice. 

            The Court of the King's Bench was the highest Common Law court in Ireland. As its name implies it was the bench in the king' court, where the king sat. He there heard the appeals of his subjects in suits in which the crown was involved, as often as not from the Court of Exchequer on financial matters like taxes due to the king. Often the king left this duty to a lawyer, or lawyers, and the senior of these was called the Lord Chief Justice of the King's Bench. It had a criminal side and a civil side. The criminal side dealt with the most important criminal cases like high treason, no matter in what part of Ireland the crime had been committed.  The Lord Chief Justice could call any case to his court, when dissatisfied with the way it was being conducted. With regard to the courts it should be remembered that the system was not rationalised until 1877. The court could issue a writ of Coram nobis to transfer a trial to Dublin, or a writ of Certiorari demanding that the records of a lower court be sent to it. Appeals could be made from the Commission Courts to the Court of the King's Bench on grounds of a mistrial or misdirection by the judge, but not against a verdict of a jury. Against the latter there was appeal to the Lord Lieutenant to exercise the royal prerogative of mercy. The Lord Chief Justice's authority was confined to the conduct of cases in the courts; The Lord Chancellor was responsible for the conduct of the personnel. 

            The Court had its civil, or Nisi prius side. The commission judges at the assizes in fact tried most Nisi prius cases. If such a case was not tried the plaintiff could obtain a writ from the Lord Chief Justice calling on the plaintiff and defendant to appear before him unless first [nisi prius] the case had been tried elsewhere. Bringing a case before a court in Dublin was much more expensive, but the plaintiff would expect that if he won the costs would be paid by the defendant. In strict theory civil cases in the Court of King's Bench should involve the crown in some way, but it is far from obvious how this was interpreted. Possibly extraneous circumstances such as the difficulty of getting a fair trial elsewhere were considered. 

            The Court of Common Pleas was originally established to judge cases between subjects that did not involve the crown. It was demanded in the Magna Charta that a place be fixed in which judgements could be given rather than having the plaintiff follow the court about. Westminster was appointed as the place for this court to sit. It was a civil court only, and had no criminal side. In civil cases, like libel, a plaintiff could bring his case before any court in Ireland. For example, a Galwayman who was libelled in Derry could bring his case before a court in Galway, Derry, Dublin, or anywhere else. The speed with which a case was cleared up might outweigh the costs of bringing the action in Dublin. 

            The Court of Exchequer was the most ancient of the four courts, and the one that most retained its medieval character. It was originally a board of officials charged with examining all sources of the king's revenue and judicially deciding what was owed to the king. It was named after a chequered table on which the money was counted, the chequer being a form of abacus. The judges in this court were still called barons, because that was what those charged with investigating the sources of the royal finances were called. (The Chancellor of the Exchequer originally belonged to this court, and indeed long retained the right to be heard in it when it sat as an equity court.) It had its Common Law, equity, and financial sides, but had no criminal jurisdiction. In theory it was confined to financial matters, but by a legal fiction that the plaintiff could not pay his debts to the king it extended its jurisdiction to other matters. Its administrative side was concerned with collecting arrears of taxation, and this formed a large part of its work.  From the 1830's onwards, by a political decision, the Court of Exchequer refused to hear tithe cases if a remedy could be found in the Common Law courts. It considered bringing such cases to Dublin merely vexatious. The Chief Remembrancer was the bailiff or auctioneer of this court. 

            The Court, until 1803, was the only one that could issue writs sub poena summoning persons to appear before it under threat of a penalty for contempt. In that year the power was extended to other courts. The writs were directed to the sheriff of the county, who normally did not employ a bailiff, leaving the plaintiff to employ his own process-server (DEP 16 April 1825). It also had a curious power dating back to the Middle Ages of issuing 'Commissions of Rebellion'. These commissions gave a power similar to that of the sheriff of swearing in a posse of special deputies. A writ could be issued to a plaintiff enabling him to call on all the king's liege subjects to carry out the orders of the court. Whatever value this might have had in the days of Robin Hood it was clearly out of date in the nineteenth century. Most people regarded the power as obsolete, but as noted earlier no theory of obsolescence was accepted in the courts. 

            During the widespread refusal to pay tithes in the 1830’s some gentlemen decided to use this archaic power to force the payment. They hoped to be able to use the new police to assist them, but the Government resolutely refused to allow the police to act other than under the direction of their own officers, and also refused to allow the police to become involved in civil disputes. The Protestant gentlemen obtained Commissions of Rebellion from the Court of Exchequer and then called on the senior police officer in the locality to assist in collecting the tithes. This led to a clash between the Government and the Court of Exchequer with regard to the limits of their respective authorities.  The Court of Exchequer backed down pragmatically by refusing to hear tithe cases which were merely vexatious. The Government in 1836, when re-organising the police, made clearer the principle that they acted only under their own officers. 

            Though there could not be an appeal from a verdict of a jury there could be appeals made on points of law. The appeal court in Ireland was called the Court of Error or Court of Exchequer Chamber. It was established by the 40th George III 'for the more speedy correction of erroneous judgements'. (Such a court had existed in England since the Middle Ages.) The Chief Justices, and the Chief Baron, and the other justices, or any nine of them, were empowered to examine, affirm, or reverse judgements and to award costs, moderate or exemplary. 

            Prior to 1782 appeals from the Irish Court of King's Bench were made to the English Court of King's Bench by writ of error, or to the British House of Lords by appeal, but for political reasons the appeals were transferred to the Irish House of Lords. With the Act of Union appeals from the Irish courts were transferred to the House of Lords in Westminster. The first appeal from an Irish court was not made until 1830 when a barrister called Richard Radford Roe made the first appeal. In theory every lord could speak and judge, but in practice decisions were left to the Law Lords. 

            In the eighteenth century a new building was erected to house the Four Courts, being completed in 1800. It also housed the offices of the courts of Chancery, King's Bench, Rolls, and Exchequer Courts, and the offices of the Clerk of Hanaper and the Chief Remembrancer. 

            The system of courts was rationalised in 1877 following a re-organisation of the English courts. The four principal courts, along with minor courts like that of the Admiralty, were fused into a single 'Supreme Court of Judicature' with Common Law and Equity jurisdiction. It had two sides, a High Court of Justice with original jurisdiction, and a Court of Appeal. The High Court, in five divisions, heard cases that had formerly been brought before the four courts. The Court of Appeal heard appeals both from the assizes and from the divisions of the High Court. The House of Lords remained the ultimate court of appeal (Lyons). [Top] 

(iii) The Ecclesiastical and Admiralty Courts 

            Besides dealing with the affairs of the Established Church the ecclesiastical courts had quite an extensive civil jurisdiction up to 1857 chiefly with regard to divorce proceedings and the probate of wills. The Oxford English Dictionary under 'probate' notes that the manorial court in the Lordship of Newry dealt with marriages licences and the probate of wills under the seal of the religious house [Cistercian] to which it had formerly belonged. The peculiarity of these courts was that in them Roman, not Common Law was applied. All member of these courts, and the barristers, or proctors as they were called, who practised in them had to possess a degree in Civil and Canon Law from a university.  

            The Consistorial Court was the court of a bishop that dealt with breaches of Canon Law and the general administration of a diocese, matrimonial cases, questions of divorce, wills, administration of property, and tithes. It was presided over by the chancellor of the diocese. The Prerogative Court was the court of an archbishop to deal with cases of wills in which effects had been left in two or more dioceses of his province. Its jurisdiction was transferred in 1857 to the Probate Court. The High Court of Delegates was composed of commissioners appointed under the Lord Chancellor's great seal to hear appeals in ecclesiastical and Admiralty causes. It also dealt with divorces on the sole grounds of adultery. (Catholic bishops applied the Roman Canon Law in their own courts, if they ever summoned them, and disclaimed all rights of interference in civil jurisdiction.) 

            The Admiralty Court had exclusive legal jurisdiction on matters which occurred at sea, including the shore and river estuaries, such as acts of piracy or the condemning of ships taken under letters of marque and reprisal, i.e. by privateers. It had been split off from its parent court in 1784, even though a separate Irish Admiralty did not exist. Prior to that date the court had the status of an Admiralty court sitting in Dublin. This court accepted 'commercial law' which was a commonly accepted international law based on Roman Civil Law. Appeals were made to the Court of Delegates as was appropriate in a Civil Law court. [Top] 

(iv) County Courts: Courts of Commission and Assize 

            Indictable offences, those that had to be laid before a Grand Jury, could be tried only in the king's courts. Medieval courts like palatine courts, or those of the 'Liberty of an earl', had disappeared, and the office of Seneschal of the County no longer existed. The assizes date from the reign of Henry II, when judges were sent out to try cases too important for the county courts, but which would be too expensive to bring to the king's peripatetic court. Twice each year the judges in the Dublin Courts were sent round the county towns to try all the outstanding cases. Each judge  (and if there were not enough of them serjeants) was given commissions of Oyer and Terminer or general gaol delivery to hear and decide all criminal cases, and also of Nisi prius to hear all civil cases. The sessions of these judges, which were held twice a year in the county towns, were called the assizes. The corresponding sessions in the city of Dublin, which were held six times a year were called sessions of Oyer and Terminer (In London, in the Old Bailey, they were held eight times a year.) The sessions in Dublin and in the counties were held in the sheriff's courthouse.  

            If it were felt necessary, in Dublin or in the counties to hold trials for capital offences other than during the assizes, special commissions of Oyer and Terminer were given to one or more judges. The only thing special about them was that they were not the general commissions given to all the judges to hold the assizes. 

            The twelve commissioned judges were sent out on six circuits. These were the Home, the North East, the North West, the Munster, the Leinster, and the Connaught circuits. The senior judges had first choice and usually chose the circuits closest to Dublin. Some circuits were famous for their heavy calendars; others for their light.  Tipperary usually had the heaviest calendar, and Fermanagh the lightest, but some variation could be due to a greater readiness to appeal from the sheriff's courts. 

            On circuit the judges had some administrative functions besides the judicial ones. They had to address the Grand Jury, calling their attention if necessary to some aspect of administration or of the execution of justice. This was called the charge to the Grand Jury. They had to approve the presentments for the year before a rate could be set. They had to receive the nominations of sheriffs for the following year. In his charges to trial juries the judge stated the law on the issue, and the jury had to accept his ruling on the point of law. They then decided the point of fact, whether the law so interpreted was broken. Appeals therefore were invariably against the rulings of the judges. Occasionally a test case could be brought to determine a point of law. The side favoured by the ruling of the judge won even if the jury acquitted the accused on point of fact. [Top] 

(v) County Courts: Mayor's and Sheriff's Courts 

            The rise of the assize or commission courts meant that the courts of the mayors and sheriffs declined in importance. Sessions in the sheriff's court in the counties were held in the quarters of the year when there was no assizes, and were called Quarter Sessions. These courts were in the nineteenth century record courts, because records or rolls of their proceedings had to be kept.  Record courts were courts of the sovereign, and had powers to fine or imprison. Some towns and cities also had record courts presided over by minor judges called recorders who had legal powers corresponding to those given to Assistant Barristers in the county courts. (The sheriff's or county court, when made a court of record became a king's court.) The magistrates of the county attended and they were assisted by the Assistant Barrister, who chaired their meetings. Grand and petty juries were empanelled and indictable offences (those that had to be indicted before a Grand Jury) were tried, except those which involved penalties of death or transportation. In the nineteenth century horsestealing came into this category. [Top] 

(vi) The Other Courts 

            Petty offences could be tried in the manorial courts where these still existed, in the mayor's and sheriff's courts in the cities, and before magistrates. There were several kinds of minor courts and it was laid down in each case what kind of offence it could try. 

            The most ancient courts were the manor courts. They were presided over by a seneschal who was often a solicitor, and were held before a jury of at least twelve freemen of the manor. The jury of the manor originally had administrative functions as well as judicial, but these functions had largely been taken over by the counties in Ireland and by the parishes in England. Where a manor was a Liberty powers of civil administration survived into the nineteenth century. Their authority was derived from the ancient Lord of the Manor. (In feudal times the estate in land was called a manor, and the owner of the manor had various powers of jurisdiction given to him by right of ownership.) The lord could have been a corporate body like a monastery or the chapter of a cathedral.

            If the manor court was a court baron it could deal with affairs on the estate. If it were a court leet it could deal with affairs of the hundred or barony. If it were a court of frankpledge it could deal with the affairs of a tithing or ecclesiastical district. The manor of Kilmainham, of which Lord Cloncurry was Lord, had all three. In 1767 Sir Edward Newenham summoned 300 of his tenants to a court leet, empanelled a jury of 23 men, and explained the Whiteboy Act. In Dublin, the Lord Mayor's court, and the Sheriffs' court were properly speaking manorial courts, with the Lord Mayor or sheriff acting as a Lord of the Manor. The powers of each court depended on its charter. Some manorial courts had criminal as well as civil jurisdiction. Some were restricted to dealing with sums under forty shillings, while others could deal with sums up to one hundred pounds. Some manors had powers over shipwrecks or escheated goods of felons, fugitives, and outlaws.  

            Manorial courts were usually held in a large room in an inn. As in some cases no legal qualifications were required of the seneschal, and the sessions were held in public houses their decisions were less and less respected. The Government in the nineteenth century made various attempts to reform them, as they were clearly needed to deal with minor offences such as goods not paid for. The jurisdiction of many of these courts was brought to an end in 1828 when the Exchequer Court refused to recognise their jurisdictions on the grounds that the extents of those jurisdictions were no longer known with certainty. 

            Around Dublin, just outside the jurisdiction of the Lord Mayor, were several manors or 'Liberties' with their own manorial courts with quite extensive powers. The Liberty of St Thomas and Donore, called the Earl of Meath's Liberty, retained its old court and also some administrative functions. The Grand Jury of the Liberty was the market jury, could appoint constables, and remove nuisances like dangerous buildings. Lord Cloncurry, an active magistrate, was concerned about the uneven availability of justice in the minor courts, and at first strove to get the manorial courts revived and reformed. Later he concentrated on getting the magistracy reformed and petty sessions established. [Top] 

(vii) The Magistracy 

            The term magistrate in England and Ireland was a synonym for a Justice of the Peace. The office in Ireland, unlike in England, was almost entirely a judicial one, the administration of the county being in the hands of the Grand Jury. The original duty of magistrates seems to have been the administering of oaths. Magistrates were empowered to commit an accused person to trial before a judge and jury if they were satisfied that there was a prima facie case against him. In Ireland this was done by accepting sworn testimony or affidavits without question. They took bail from both parties, one to appear to prosecute (even in criminal matters), and the other to appear to defend himself. They had summary jurisdiction with regard to minor offences, and had powers to grant licences. If they were justices for the county they sat, along with the Assistant Barrister, at Quarter Sessions. They only could administer oaths legally. As Justices of the Peace they were especially bound to assist the mayor or sheriff in times of civil disturbance, and the army, when aiding the civil power had to act under their direction. If a sheriff or magistrate read the Riot Act the army was empowered to fire on the mob. They were entitled to fees for taking affidavits and recognisances but their clerks were not. A recognisance was a deposit given by the accuser who swore the affidavit to ensure that he would be present at the assizes to prosecute. Bail was the deposit paid by a defendant to ensure that he would appear. 

            The County Governor was supposed to enquire and report to the Lord Chancellor who were suitably qualified persons in the county with an independent income from land of at least £200 for appointment as magistrates. At the beginning of the century the system of appointing was haphazard. Army officers temporarily stationed in the county, public officials, likewise, and clergymen, could be also appointed. But nobody enquired if they were still in the county, if they ever held a court, or were still in possession of their mental faculties. A magistrate held his summary court in his own house, and could expel the public if he wished. By an Act of 1805 he could deal with cases up to £10 in value. Lord Cloncurry noted that a poor man might walk half the length of the county to find a magistrate willing to listen to his case. 

            After 1800 the Government began to consider the reform of the magistracy. It resisted calls for a wholesale purging of the magistracy, feeling that the removal of old, incapable, and inactive magistrates was too harsh. It preferred to extend the system of police magistrates which was being tried in Dublin. In the counties these were called stipendiary magistrates or resident magistrates. Eventually about two were appointed to each county. Attention in the past has been focussed on the weaknesses of the system of magistrates in counties where resident gentlemen were few. These complaints were not necessarily true for example in Ulster. 

            The magistrates themselves reformed their courts of summary jurisdiction without awaiting legislation by the Government. Lord Cloncurry was a great advocate of petty sessions where two or three magistrates joined to hold their courts in common. These joint sessions had no more authority than separate sessions, but the fact that magistrates sat together contributed to upholding the dignity of the law. No legal training was provided for magistrates, whether county gentlemen or stipendiary magistrates. They were expected to purchase copies of privately produced handbooks for magistrates. [Top] 

(viii) Personnel of the Courts 

            The legal profession was divided into solicitors or attorneys and barristers. The former dealt with all aspects of the law, but could not plead in the higher courts; the latter were restricted to advocacy in such courts. Solicitors originally dealt with matters in equity courts and attorneys in Common Law courts but by the nineteenth century solicitor was the preferred term for both in the British Isles while attorney was preferred in America, both dealing with Equity and Common Law cases. 

            Solicitors received their training by being apprenticed or 'articled' to a practising solicitor. In 1791 a Solicitor's Society was established in Dublin (Thom's Directory 1844). In 1841 the Society of Attorneys and Solicitors, the present Law Society, was formed as a regulatory body for the profession of solicitors, and also a Law Institute to improve legal training. 

            Solicitors did routine legal work like drawing up wills, or giving legal advice especially with regard to conveyancing of property. They made out writs for the signature of a magistrate. They could be employed to collect rents. They also prepared cases for the barristers to plead in the superior courts. The Government employed a number of solicitors to prepare its own business in the courts. Before the assizes the Crown Solicitor had to collect copies of the various affidavits sworn before the magistrates and send them to Dublin for perusal by the Attorney General. 

            The training of barristers-at-law or counsellors was very sketchy. (Counsel was a group of barristers.) In theory aspirants to the bar were apprenticed to practising barristers attached to the King's Inn in Dublin and the Inns of Court in London. The amount of instruction they received depended on the barrister concerned. They could accompany the barrister into court and could read the authorities he pointed out to them. The only actual requirement was to attend one of the Inns of Court for some terms and eat the prescribed number of meals. 

            There was only one Inn of Court in Ireland, called The King's Inn. Unlike in London barristers had no chambers in this inn but conducted all their business in the library attached to the Four Courts. The King's Inn was managed by a group of barristers called the Benchers of the King's Inn, and these formed the regulatory body of the profession. Lectures in law had long ceased to be given at the Inn and students were merely required to 'keep terms' i.e. to attend at the prescribed number of dinners. By a statute of Henry VIII Irish students had to keep some terms at the Inns of Court in London where a similar regime prevailed. The advantage for the diligent student was that he could attend the courts and listen to the ablest advocates of the day. When a student had completed the required terms he was 'called to the bar' by the Benchers without examination, and so was authorised to plead in the superior courts. Whether he studied or became a successful barrister was left to himself.

            A barrister, or counsellor, might get very few briefs from solicitors and so be unable to maintain himself at the bar. He might then turn to politics or to the press. Conversely, many attached to newspapers liked to keep terms so as to be able to call themselves barristers. As judges were drawn only from the ranks of the barristers an ambitious young man had to choose to become a barrister even if it meant considerable penury until he had made a name in the courts. 

            When a barrister had attained a certain eminence in the courts he could be invited by the Lord Chancellor to become a King's Counsel (KC) and plead on behalf of the crown. These were allowed to wear a gown of silk instead of stuff, and their cases had precedence over those of other barristers. They could be permitted to appear against the crown. Some of the King's Counsel could be advanced to the rank of serjeants-at-law, from which rank judges were drawn. In court serjeants were addressed as 'brother' by the presiding judge. The appointment to judgeships and serjeantcies were political rewards, but acceptance of the office signalled retirement from politics. (The offices of Attorney General and Solicitor General were described under Government.) 

            The roles of the Solicitor General, the judges, and the barristers are well illustrated in the trial of the 'Doneraile Conspirators' (the Irish equivalent of the 'Tolpuddle Martyrs') in 1830. 

            Information had been sworn before certain magistrates in Doneraile in county Cork that there was a secret conspiracy to murder in the locality. O’Connell seems to have personally believed that there was such a conspiracy but the Irish Government (Tory) in Dublin was sceptical as they always were regarding stories of conspiracies.  However, the affidavits had been sworn so a Special Commission to try the case was issued out of the usual time for the assizes and the Solicitor General was sent to Cork to prosecute. Knowing the lax habits of the county gentlemen the judges and the Crown Solicitors examined the various affidavits, and found some discrepancies. O’Connell was on holiday and did not bother to attend, so the court allowed the defendants to choose any other barrister present, and the court would pay his fees. The Grand Jury found true bills, and the trials came on, with the defendants being tried in batches. O’Connell suddenly, for unknown reasons, decided to attend and rushed from Kerry. He entered the court without having read the affidavits and the judge helpfully indicated to him the discrepancies in the evidence he had himself noted. Though these were minor they were sufficient for one juryman to hold out for acquittal. The circumstances were fully explained in the House of Commons by the Solicitor General, John Doherty. (Evening Packet 22 May 1830) What was notable was the willingness of the Solicitor General and the judge to allow every possible advantage and assistance to the defendants. Yet by the time of Doherty's death in 1850 the episode had been twisted into an attempt by the Government to judicially murder Catholics by means of perjured witnesses. 

            A judgeship represented the peak of a legal career, but the appointment was normally as a reward for political services. The judges were worthy and reasonably capable, but not noted for their legal learning. (It would be foolish to take O’Connell's comments on political opponents at face value.) They were representative of Irish barristers in general where forensic skill was more highly regarded, and when a pair of duelling pistols were considered more important than books on the law. Whatever their political opinions the judges in their charges to trial juries confined themselves to stating the points of law as they understood them. Even in their more wide-ranging charges to the Grand Juries they normally avoided politics. [Top] 

(ix) Procedures of the Courts 

            Proceedings in the court began with the selection of a Grand Jury by the sheriff. The presiding judge then charged the jury on their administrative and judicial duties. The Grand Jury cursorily examined the affidavits, usually not taking more than a minute in each case before finding a true bill. Occasionally in Dublin the Grand Jury actually examined the affidavits. 

            The cases were brought forward in the order of the precedence of the barristers, and petty or trial juries were selected to try each case. By an Act of the 5th George III copies of the indictment were furnished to the accused, and counsel was assigned to him if he could not afford to engage them himself. The defendants could be tried singly or in batches, and the largest liberty was allowed to both sides to challenge and set aside prospective jurors. There is no evidence that the crown lawyers challenged more frequently than anyone else.  As most leading barristers had several cases at an assize both on the civil and criminal side informal arrangements were made to allow them to attend each case. O’Connell, for example, would inform the judge when he was liable to finish a case in another court, so that the judge, with O’Connell's junior barrister present, could commence the preliminaries 

            The first step in a trial was for the counsel for the defence to request leave to 'traverse in prox', i.e. to have the case put off until the next term. This allowed the barristers time to read up on the points of law involved. Because of this practice the accused were often referred to as traversers. When the case eventually came to trial the witnesses were examined under oath by the counsel for the prosecution, and then cross-examined by the counsel for the defence. The judge then summed up and stated the law on the point for the benefit of the jury. In this he depended heavily on the legal cases made by the rival barristers who 'reminded' the judge of various precedents or authorities. The judge might make a mistake but was not held responsible for that. If one were wealthy enough one could keep on appealing until the House of Lords finally heard the case. Litigation was as expensive then as at any other time. 

            There is little reason to believe that juries frequently returned perverse verdicts, i.e. verdicts contrary to the evidence presented to them in court. Luby quotes an opinion of O’Connell that he did not think that one guilty person in a hundred got off because the jury disagreed. Nevertheless, the Morning Chronicle of London in 1829 reported a widespread belief that Catholic juries would not convict Catholics and Protestant juries would not convict Protestants, and considered that this belief derived from a time when no tribesman would find a fellow-tribesman guilty. One of the chief reasons for peremptory challenges was to exclude from a particular trial those under a tribal or family obligation not to convict.  

            Evidence is lacking on the extent of perjury among the witnesses. It may have been fairly extensive both on the part of the prosecution (i.e. the private prosecutors) and defence, and in both civil and criminal cases. There is abundant anecdotal evidence about witness trying to avoid swearing on the Bible by kissing their thumb placed on the text instead. In any case there is no evidence that it characterised one party more than another. (Catholic nationalists believed that the crown deliberately employed false witnesses. Not only is there no evidence for this but it is against all we know of the Government and the legal profession.) 

            In Nisi prius trials, the civil cases, in rural areas a knowledge of the jury was more important than knowledge of the law or actual facts. It was here that O’Connell shone, and where he made his enormous reputation in the south of Ireland. (He rarely pleaded outside the Munster circuit.) The great object was to convince the jury that his client's case was more plausible than that of his opponent. To understand O’Connell's fame one should envision a case such as that of a farmer when drunk (or alternatively only half-drunk) offering to add a calf (or alternatively a particular calf) to his daughter's dowry, the which calf (or particular calf) having in the meantime died, and both sides perjuring themselves. Needless to say such cases led to mirth, a fact which O’Connell was famed for exploiting. 

            The barristers did not attend every court in Ireland though they were free to do so. They normally belonged to the barristers' club or bar corresponding to each circuit. When they came to the assize town they occupied all the rooms in the inns and dined together. The presiding judge by custom invited the bar to dinner with him on one night. Proceedings on circuit were less formal than in Dublin and the barristers did not wear wigs. Formal legal dress was absolutely required in the Dublin Courts from the end of the eighteenth century. The personnel in the courts was entirely male. 



Copyright Desmond J. Keenan, B.S.Sc.; Ph.D. ;.London, U.K.